WEBVTT - Ultraconservative 5th Circuit Dominates SCOTUS Term 0:00:03.200 --> 0:00:08.000 This is Bloomberg Law with June Brusso from Bloomberg Radio. 0:00:09.200 --> 0:00:12.320 The US Supreme Court opened a new term today, and 0:00:12.400 --> 0:00:15.239 in the next nine months, an outside share of the 0:00:15.320 --> 0:00:19.520 High Court's biggest cases will come from the ultra conservative 0:00:19.640 --> 0:00:23.520 Fifth US Circuit Court of Appeals, whose far reaching rulings 0:00:23.520 --> 0:00:28.040 are proving impossible for the justices to ignore. Cases involving 0:00:28.160 --> 0:00:32.880 federal regulatory power, guns and social media regulation will test 0:00:33.159 --> 0:00:37.080 just how far the Supreme Court's conservative majority wants to 0:00:37.159 --> 0:00:40.920 go in remaking the nation's legal landscape. Joining me is 0:00:40.920 --> 0:00:44.600 Bloomberg New Supreme Court reporter Greg Store. Greg just how 0:00:44.640 --> 0:00:46.640 conservative is the Fifth Circuit. 0:00:47.159 --> 0:00:51.080 It's unquestionably the most conservative federal appeals court in the country, 0:00:51.360 --> 0:00:53.320 and it gets an awful lot of cases, so we 0:00:53.479 --> 0:00:56.600 notice it even more than other courts. On this court, 0:00:56.680 --> 0:00:59.600 twelve of its full time judges are Republican appointees and 0:00:59.680 --> 0:01:03.120 only for our Democratic appointees. And six of those Republican 0:01:03.160 --> 0:01:06.319 appointees are appointees of Donald Trump. And you know, they 0:01:06.319 --> 0:01:08.560 include some justices who are really trying to make a 0:01:08.640 --> 0:01:11.679 name for themselves with some really far reaching rulings. And 0:01:11.760 --> 0:01:14.760 so it's kind of consistently the place where conservatives go 0:01:14.840 --> 0:01:16.840 when they are looking to push the law in a 0:01:16.840 --> 0:01:17.480 certain direction. 0:01:18.160 --> 0:01:20.520 There have been a lot of stories about the Texas 0:01:20.600 --> 0:01:24.160 judges who have become the go to judges, for example, 0:01:24.440 --> 0:01:27.920 for Republican states that want to sue. Tell us about 0:01:27.959 --> 0:01:31.559 the Trump appointees on the Fifth Circuit, because what seems 0:01:31.640 --> 0:01:35.160 unusual about them is they're not only conservative, but several 0:01:35.200 --> 0:01:40.120 of them made statements before they became judges that staked 0:01:40.160 --> 0:01:45.880 out very conservative positions on issues like abortion and gay marriage. 0:01:46.280 --> 0:01:49.440 Yeah. So there's also one who while on the bench 0:01:49.520 --> 0:01:52.720 has made some really remarkable statements. That's James ho He's 0:01:52.880 --> 0:01:56.280 a Trump appointee. He's described abortion while on the bench 0:01:56.520 --> 0:01:59.240 as a moral tragedy and written that if there's too 0:01:59.280 --> 0:02:02.200 much money and power politics, because there's too much government. 0:02:02.800 --> 0:02:04.960 And then there's some other judges that really drew a 0:02:04.960 --> 0:02:07.560 lot of controversy when they were nominated. A guy like 0:02:07.640 --> 0:02:10.440 Corey Wilson, who had written that gay marriage is a 0:02:10.560 --> 0:02:14.720 pander to liberal interest groups. Another judge, Stuart Kyle Duncan, 0:02:14.800 --> 0:02:18.040 who has written a lot of things in opposition to 0:02:18.200 --> 0:02:22.360 LGBTQ rights, and he was a judge who drew that 0:02:22.440 --> 0:02:25.839 protest at Stanford Law School, where protesters shut him down, 0:02:25.840 --> 0:02:28.359 wouldn't let him speak. So he's very much a lightning rod. 0:02:28.720 --> 0:02:32.520 The Fifth Circuit hasn't been bearing that well at the 0:02:32.560 --> 0:02:35.400 Supreme Court. To me, it's taken the position the Ninth 0:02:35.400 --> 0:02:37.520 Circuit used to take, where it was the most reversed 0:02:37.520 --> 0:02:40.440 circuit for so many years. So tell us how it's 0:02:40.520 --> 0:02:42.239 done in the past year. 0:02:42.720 --> 0:02:45.680 Not very well. So in the last Supreme Court term, 0:02:45.960 --> 0:02:48.800 in seven of nine cases, the Court decided if at 0:02:48.880 --> 0:02:52.880 least partially or largely reversed the Fifth Circuit. And the 0:02:52.919 --> 0:02:55.120 way it's different just to go back to the Ninth Circuit. 0:02:55.120 --> 0:02:57.400 The way it's different is the Ninth Circuit I had 0:02:57.400 --> 0:02:59.800 a well deserved reputation back in the day as being very, 0:02:59.880 --> 0:03:02.480 very very liberal, and the Supreme Court, even when it 0:03:02.520 --> 0:03:05.720 wasn't as conservative as this Court is, would say, no, 0:03:05.880 --> 0:03:08.919 we're not going to let you do that. Ninth Circuit. Here, 0:03:09.000 --> 0:03:11.200 it's a case where the Fifth Circuit is trying to 0:03:11.240 --> 0:03:14.040 sort of go beyond where the Supreme Court has gone. 0:03:14.160 --> 0:03:17.200 It is a conservative Supreme Court, and we have the 0:03:17.200 --> 0:03:20.079 Fifth Circuit trying to push the envelope even beyond where 0:03:20.080 --> 0:03:21.480 the Supreme Court is gone do. 0:03:21.560 --> 0:03:24.160 Some of their decisions seem like decisions that the Supreme 0:03:24.160 --> 0:03:27.080 Court almost has to take or it will allow the 0:03:27.200 --> 0:03:30.120 law to be, you know, even further out or even 0:03:30.120 --> 0:03:32.320 more conservative than the Court envisioned. 0:03:32.800 --> 0:03:35.080 Yeah. So a number of the cases the Supreme Court 0:03:35.120 --> 0:03:38.760 has this term are cases where the Biden administration is 0:03:38.800 --> 0:03:42.280 appealing and there are cases where the Fifth Circuit struck 0:03:42.320 --> 0:03:46.839 down something that either an administrative agency or Congress did. 0:03:46.960 --> 0:03:49.840 So one example, there is a law that says the 0:03:49.840 --> 0:03:52.840 people subject to a domestic violence restraining order can have 0:03:53.040 --> 0:03:56.080 their Second Amendment rights gun rights taken away. The Fifth 0:03:56.080 --> 0:03:59.960 Circuits that, Nope, that law is unconstitutional. The Biden ministry 0:04:00.240 --> 0:04:02.080 came up to the Supreme Court, and really, in that 0:04:02.120 --> 0:04:05.320 sort of situation, the Court almost has to take the case. 0:04:05.600 --> 0:04:08.640 So we're going to now see what the Supreme Court 0:04:08.680 --> 0:04:11.080 thinks about that interpretation of the Second Amendment. 0:04:11.680 --> 0:04:14.600 Yeah, that's guaranteed to be one of the biggest cases 0:04:14.640 --> 0:04:17.880 of the term. And my favorite line from that really 0:04:18.000 --> 0:04:21.279 was the Fifth Circuit saying that while the defendant there 0:04:21.400 --> 0:04:25.440 Raheemi was quote hardly a model citizen, he was entitled 0:04:25.480 --> 0:04:29.279 to Second Amendment protections. And this is a defendant who 0:04:29.320 --> 0:04:32.400 not only had a restraining order against him by his 0:04:32.800 --> 0:04:36.880 former girlfriend, but also shot his gun in public I 0:04:36.880 --> 0:04:41.800 think five times. So not exactly a model defendant for 0:04:41.800 --> 0:04:42.560 a case like this. 0:04:43.320 --> 0:04:45.599 No, And in fact, if you're a Second Amendment advocate, 0:04:45.600 --> 0:04:47.800 a really bad defended to have in a case like this. 0:04:48.279 --> 0:04:51.680 You have both this law that protects again something that 0:04:51.720 --> 0:04:54.560 is pretty commonly understood to be a very very dangerous 0:04:54.560 --> 0:04:58.200 situation to somebody with a domestic violence restraining order having 0:04:58.240 --> 0:05:02.640 access to firearms. Also have somebody who a judge found 0:05:02.800 --> 0:05:07.640 had engaged in all sorts of criminal violent activity. And 0:05:07.839 --> 0:05:10.600 the confluence of those things make it a case where, 0:05:10.920 --> 0:05:13.520 even with this conservative Supreme Court, it's going to be 0:05:13.520 --> 0:05:16.440 pretty hard for them to explain why mister Rahimi is 0:05:16.440 --> 0:05:19.760 somebody who is entitled to keep his Second Amendment right. 0:05:20.080 --> 0:05:23.159 The Supreme Court has several cases that may allow it 0:05:23.240 --> 0:05:26.800 to expand its attempt to rein in the administrative state, 0:05:26.880 --> 0:05:29.600 and a couple come from the Fifth Circuit coming up 0:05:29.640 --> 0:05:35.440 tomorrow oral arguments in the Consumer Financial Protection Bureau's funding system. 0:05:35.560 --> 0:05:38.320 The second time I think the CFPB has been before 0:05:38.360 --> 0:05:41.880 the Court. So tell us about this Fifth Circuit decision. 0:05:42.320 --> 0:05:44.400 Yeah, it is the second time the CFPB has been 0:05:44.440 --> 0:05:46.880 up before the Supreme Court. This case has to do 0:05:47.040 --> 0:05:50.680 with how the bureau gets its money. It gets its 0:05:50.760 --> 0:05:54.480 money through the Federal Reserve system. It doesn't rely on 0:05:54.520 --> 0:05:57.680 the year to year congressional appropriations, and that was a 0:05:57.720 --> 0:06:00.919 part of Congress's design and creating the bureau after the 0:06:01.040 --> 0:06:03.600 two thousand and eight financial crisis. They wanted to give 0:06:03.600 --> 0:06:06.760 the CSPB a certain amount of independence, shielded from the 0:06:06.760 --> 0:06:09.880 political processes. And what the Fifth Circuit said was this 0:06:10.000 --> 0:06:14.520 system violates the constitutional provision that says government spending has 0:06:14.560 --> 0:06:18.640 to be done via a congressional appropriation. Now, in the past, courts, 0:06:18.640 --> 0:06:22.039 in concluding the Supreme Court have said that provision is 0:06:22.080 --> 0:06:24.680 something that keeps the executive branch from spending money that 0:06:24.720 --> 0:06:28.080 Congress hasn't authorized to be spent. Courts haven't used it 0:06:28.360 --> 0:06:30.960 to restrict Congress and the way they can set up 0:06:31.000 --> 0:06:33.760 an agency. Well, the Fifth Circuit did in this case. 0:06:33.839 --> 0:06:37.279 So it's a novel constitutional approach. There's not a whole 0:06:37.320 --> 0:06:39.800 lot to go by in terms of precedent, and it's 0:06:39.800 --> 0:06:41.720 going to be very interesting to see how the Supreme 0:06:41.760 --> 0:06:44.400 Court deals with that and then what it decides to 0:06:44.440 --> 0:06:47.880 do if immediate agrees that the system is unconstitutional. 0:06:48.680 --> 0:06:52.440 There's another case, and it's the SEC and its use 0:06:52.440 --> 0:06:56.040 of in house judges. Another issue that's been before the court. 0:06:56.520 --> 0:06:59.600 And the Fifth Circuit found three different problems. 0:06:59.640 --> 0:07:06.040 With the three different problems, two of them are sort 0:07:06.080 --> 0:07:08.560 of connected and that may be kind of the biggest 0:07:08.560 --> 0:07:11.560 part of the case. The Fifth Circuit said that under 0:07:11.600 --> 0:07:15.520 the Constitution, folks hit with an SEC complaint in many 0:07:15.520 --> 0:07:18.280 cases have a right to a jury trial, meaning the 0:07:18.360 --> 0:07:22.480 SEC cannot bring those cases before an administrative law judge 0:07:22.560 --> 0:07:25.440 at the agency. They have to go into federal court. 0:07:25.840 --> 0:07:28.600 And then the related aspect of the ruling is the 0:07:28.640 --> 0:07:31.440 Fifth Circuit said, and Congress did not give clear enough 0:07:31.480 --> 0:07:35.000 guidance to the SEC, clear enough principles to decide which 0:07:35.040 --> 0:07:37.600 cases it's going to take before the administrative law judge 0:07:37.640 --> 0:07:40.480 and which case is going to go to the Supreme Court. 0:07:40.880 --> 0:07:44.000 The final issue is that the Fifth Circuit said that 0:07:44.080 --> 0:07:47.240 the job protections that the administrative law judge is that 0:07:47.320 --> 0:07:51.400 the SEC have leieve them too insulated from presidential control. 0:07:51.480 --> 0:07:53.720 That's an issue the Supreme Court is considered in slightly 0:07:53.760 --> 0:07:57.400 different contexts before. So if the Supreme Court wants to 0:07:57.480 --> 0:07:59.880 rule against the sec. It's got kind of a menu 0:08:00.040 --> 0:08:01.200 of ways they can do that. 0:08:01.560 --> 0:08:03.840 Coming up next on the Bloomberg Lawn Show, I'll continue 0:08:03.840 --> 0:08:07.600 this conversation with Bloomberg New Supreme Court reporter Greg Store, 0:08:08.120 --> 0:08:12.160 and we'll talk about Justice Clarence Thomas recusing himself from 0:08:12.160 --> 0:08:16.120 a case involving January sixth. Last term, the Fifth Circuit 0:08:16.160 --> 0:08:18.880 did not fare well at the Supreme Court. The Court 0:08:18.880 --> 0:08:22.400 at least partially rejected the Fifth Circuit's position in seven 0:08:22.440 --> 0:08:26.120 of nine cases this term. Fights are teed up over 0:08:26.160 --> 0:08:30.160 the Fifth Circuit's decisions on federal regulatory power, guns, and 0:08:30.240 --> 0:08:35.199 social media regulation. Here's former US Solicitor General Gregory Gar's 0:08:35.320 --> 0:08:37.800 take on the Fifth Circuit's role this term. 0:08:38.000 --> 0:08:39.920 That's truly, you know, one of the broader themes that 0:08:39.960 --> 0:08:42.120 we're seeing this court. And some people have said it's 0:08:42.160 --> 0:08:45.200 sort of the Supreme Court versus the Fifth Circuit. It's interesting. 0:08:45.200 --> 0:08:48.200 I mean, the Fifth Circuit is now the most conservative 0:08:48.400 --> 0:08:51.480 circuit among the many, and you know, the kind of 0:08:51.800 --> 0:08:54.680 question that all these cases present is whether the Fifth 0:08:54.720 --> 0:08:58.199 Circuit has got out ahead of even the US Supreme 0:08:58.200 --> 0:09:01.440 Court today in terms of how conservative it is and 0:09:01.480 --> 0:09:04.400 whether or not the US Supreme Court feels as though 0:09:04.400 --> 0:09:06.760 it has to rein it in a little bit. And 0:09:06.880 --> 0:09:10.400 although this Supreme Court is certainly one of the most 0:09:10.440 --> 0:09:14.840 conservative in history, as we saw last term, there's still 0:09:15.000 --> 0:09:17.720 a few justices in the center that are not necessarily 0:09:18.000 --> 0:09:20.760 as comfortable going as far as some of the justices 0:09:21.040 --> 0:09:23.080 at the far right want to go. The Chief Justice 0:09:23.200 --> 0:09:26.080 Justice Capital and so in each of these cases, the 0:09:26.120 --> 0:09:28.160 spotlight is really going to be on those justices in 0:09:28.200 --> 0:09:30.880 the middle and whether or not they're comfortable adopting these 0:09:30.920 --> 0:09:31.720 broader theories. 0:09:32.040 --> 0:09:34.840 I've been discussing the Fifth Circuit with Bloomberg New Supreme 0:09:34.880 --> 0:09:39.600 Court reporter Greg Store. Two cases that the justices just 0:09:39.640 --> 0:09:43.520 decided to take up last week involve free speech, the 0:09:43.600 --> 0:09:46.679 rights of social media companies, and a Fifth Circuit decision 0:09:46.720 --> 0:09:49.960 that clashes with an Eleventh Circuit decision. The eleven Circuit 0:09:50.000 --> 0:09:52.600 probably the second most conservative circuit in the country. 0:09:52.840 --> 0:09:56.560 It is a very conservative feels court as well. These 0:09:56.640 --> 0:10:00.840 are laws that were put into place by Republican controlled 0:10:00.920 --> 0:10:05.520 states Texas and Florida, and they basically dictate the social 0:10:05.559 --> 0:10:09.839 media companies how they should go about managing content and 0:10:09.880 --> 0:10:14.360 removing misinformation, and they have rules about what they have 0:10:14.440 --> 0:10:18.800 to say when they take down a post online, and 0:10:19.280 --> 0:10:22.920 the social media industry trade groups sued and said that 0:10:23.000 --> 0:10:27.360 violates our First Amendment rights. The Fifth Circuit upheld the 0:10:27.400 --> 0:10:31.320 Texas law so that law would go into effect. Under 0:10:31.320 --> 0:10:35.720 that ruling, the Eleventh Circuit struck down much of Florida's law. 0:10:35.760 --> 0:10:38.640 It's a little bit different. The eleven Circuit devoted much 0:10:38.640 --> 0:10:41.600 of its focus to a provision that requires a detailed 0:10:41.640 --> 0:10:45.200 explanation every time a social media company makes a content 0:10:45.240 --> 0:10:48.160 management decision. So this is going to be a big 0:10:48.400 --> 0:10:51.960 both First Amendment free speech fight and a political fight 0:10:52.000 --> 0:10:54.439 since a lot of this is about, you know, posts 0:10:54.440 --> 0:10:57.360 that make political statements and you know, talk about things 0:10:57.440 --> 0:10:58.960 like whether an election was fair. 0:11:00.080 --> 0:11:03.600 The Supreme Court could also take up a Fifth Circuit 0:11:03.640 --> 0:11:08.280 case on the abortion pill MiFi Pristone Greig. This decision 0:11:09.000 --> 0:11:14.360 by a conservative Texas Christian federal judge which went to 0:11:14.400 --> 0:11:17.920 the Fifth Circuit, has already been at the Supreme Court once. 0:11:18.480 --> 0:11:21.199 Yeah, so right now, the abortion pill is fully available, 0:11:21.240 --> 0:11:25.040 and that's because the Supreme Court several months ago issued 0:11:25.080 --> 0:11:28.040 a stay that kept the pill fully on the market 0:11:28.200 --> 0:11:31.360 while this legal fight goes forward. That was a significant 0:11:31.360 --> 0:11:35.560 win for Biden administration and abortion rights groups. The question 0:11:35.800 --> 0:11:39.480 is basically whether the Food and Drug Administration, when it 0:11:39.559 --> 0:11:42.959 approved the drug considered all the things that was supposed 0:11:43.000 --> 0:11:46.720 to do, and then later on when the FDA under 0:11:46.800 --> 0:11:50.280 Joe Biden and Barack Obama expanded access to it, allowing 0:11:50.320 --> 0:11:53.680 things like mail order allowing the drug to be mailed 0:11:53.679 --> 0:11:56.079 to people directly and meaning they didn't have to go 0:11:56.280 --> 0:11:59.360 to a doctor obtain it, whether those things complied with 0:11:59.400 --> 0:12:02.920 the rules that got administrative agencies. The district judge you 0:12:02.960 --> 0:12:05.760 reference blocked the drug entirely, or said he would have 0:12:05.760 --> 0:12:08.720 blocked the drug entirely. The Fifth Circuit eased up on 0:12:08.760 --> 0:12:11.680 that a little bit. Instead, some changes that were made 0:12:11.720 --> 0:12:15.880 starting in twenty sixteen to widen access to it. We're 0:12:15.920 --> 0:12:19.000 going to block those, And for the time being everything 0:12:19.360 --> 0:12:21.960 is on hold. The drug is fully available, but the 0:12:21.960 --> 0:12:24.680 Supreme Court has not yet said whether it will take 0:12:24.720 --> 0:12:28.120 that case. The Biden administration has filed its appeal. It'll 0:12:28.120 --> 0:12:31.600 probably be later on this year. Again, this is one 0:12:31.679 --> 0:12:34.480 of these cases where because the appeals court said the 0:12:34.520 --> 0:12:38.480 federal government has done something wrong and the administration is appealing. 0:12:38.600 --> 0:12:41.439 It's the kind of case the Supreme Court almost always 0:12:41.480 --> 0:12:44.480 takes the Supreme Court is going to consider whether the 0:12:44.559 --> 0:12:48.520 FBA you took some shortcuts or didn't fully consider what 0:12:48.559 --> 0:12:51.960 it was supposed to consider when it expanded access to 0:12:52.000 --> 0:12:52.360 the drug. 0:12:52.960 --> 0:12:56.280 I thought when the Supreme Court issued this stay, they 0:12:56.280 --> 0:12:59.400 were sort of telling the Fifth Circuit, you know, we 0:12:59.400 --> 0:13:01.880 don't want to deal with this, But the Fifth Circuit 0:13:02.040 --> 0:13:03.160 just went ahead. 0:13:03.880 --> 0:13:07.680 Yeah, the Fifth Circuit essentially reaffirmed what it had suggested previously, 0:13:08.240 --> 0:13:12.840 saying that these changes that allowed mail distribution, for example, 0:13:13.320 --> 0:13:16.480 were in violation of the law. And so it did 0:13:16.559 --> 0:13:19.120 not take that message from the Supreme Court that it 0:13:19.160 --> 0:13:22.080 was supposed to the back full access to this drug. 0:13:22.120 --> 0:13:25.000 And now we'll see. You know, sometimes when the Supreme 0:13:25.040 --> 0:13:28.280 Court issues in emergency order a stay order, you know, 0:13:28.360 --> 0:13:30.920 sometimes it's a very good indication of how they're going 0:13:31.000 --> 0:13:33.480 to come out on the marriage. But as we saw 0:13:33.679 --> 0:13:38.120 in the case last term involving Alabama and redistricting and 0:13:38.360 --> 0:13:40.840 the creation of a second majority black district in the state, 0:13:41.200 --> 0:13:43.320 sometimes that's not the case, and sometimes the Supreme Court 0:13:43.360 --> 0:13:46.320 goes in a different direction. So this will undoubtedly be 0:13:46.360 --> 0:13:48.800 a very very hotly contested fight. 0:13:49.520 --> 0:13:53.080 How long does the Supreme Court stay remain in effect. 0:13:53.280 --> 0:13:58.640 I mean the Fifth Circuit has already issued its decision twice. 0:13:58.840 --> 0:14:02.360 Yes, the Supreme Court stay remains in effect until they 0:14:02.600 --> 0:14:05.040 either say no, we're not going to take the government's appeal, 0:14:05.520 --> 0:14:08.760 or until after they take the appeal and resolve the case. 0:14:08.840 --> 0:14:13.559 So the stay essentially keeps the drug fully available until 0:14:13.600 --> 0:14:17.080 the Supreme Court makes a final decision one way or another. 0:14:17.559 --> 0:14:17.800 IRV. 0:14:17.840 --> 0:14:21.800 Gornstein of Georgetown Law Center said some of the Fifth 0:14:21.840 --> 0:14:24.560 Circuits decisions that will be reviewed this term may well 0:14:24.600 --> 0:14:27.520 be affirmed. Not every one of them was delivered from 0:14:27.680 --> 0:14:30.880 crazy Town, but it would be shocking if at least 0:14:30.880 --> 0:14:34.480 some of those decisions are not reversed. And that seems 0:14:34.520 --> 0:14:38.040 to be the problem. These decisions are not just conservative, 0:14:38.200 --> 0:14:43.320 but their novel. They just seem not wedded to precedent. 0:14:43.840 --> 0:14:46.360 You know, some of them are taking on new issues. 0:14:46.560 --> 0:14:51.480 The appropriations clause issue is one that hasn't really been tested, 0:14:51.480 --> 0:14:54.360 at least not recently. And some of them, you look 0:14:54.400 --> 0:14:58.000 at the gun case, for example, the Rehimi case, when 0:14:58.040 --> 0:15:00.720 the Supreme Court ruled on the right to carry a 0:15:00.720 --> 0:15:05.200 gun in twenty twenty two, the Court said the test 0:15:05.360 --> 0:15:07.640 is going to be history and tradition, and you're suppose, judges, 0:15:07.680 --> 0:15:10.440 you're supposed to look and try to find a historical 0:15:10.520 --> 0:15:14.160 analog for some current regulation. And if you can't find 0:15:14.160 --> 0:15:17.280 an historical analog, that's a pretty good sign that this 0:15:17.360 --> 0:15:22.080 provision is unconstitutional. And that's the analysis the Fifth Circuit 0:15:22.120 --> 0:15:25.160 went into. And so as it comes back here, the 0:15:25.200 --> 0:15:28.600 Supreme Courts in the position of saying, well, you took 0:15:28.680 --> 0:15:31.840 that a little too far. So, you know, in some 0:15:31.920 --> 0:15:35.240 cases it is the Fifth Circuit going off on its own, 0:15:35.360 --> 0:15:38.400 and in other cases it's you know, at least arguably 0:15:38.440 --> 0:15:41.680 taking what the Supreme Court has given it and running 0:15:41.680 --> 0:15:41.960 with it. 0:15:42.200 --> 0:15:46.800 That landmark Second Amendment Supreme Court decision seems to need 0:15:46.840 --> 0:15:51.520 some clarification because it's causing confusion in lower courts. Before 0:15:51.560 --> 0:15:55.320 you go, Greg, I want to talk about Justice Clarence 0:15:55.400 --> 0:15:59.680 Thomas recusing himself today. Tell us about the case he 0:15:59.680 --> 0:16:00.880 recured used from. 0:16:01.160 --> 0:16:05.000 So this is an appeal by John Eastman. He is 0:16:05.280 --> 0:16:08.480 the former lawyer to the President Trump. He is somebody 0:16:08.480 --> 0:16:11.160 who is under indictment as part of the Georgia case 0:16:11.600 --> 0:16:15.560 legend a criminal conspiracy to overturn the election. And this 0:16:15.760 --> 0:16:19.200 case stems from efforts by the House committee investigating the 0:16:19.280 --> 0:16:22.800 January sixth attack to get his emails, and he was 0:16:22.920 --> 0:16:28.119 arguing privilege. And Justice Thomas, who heretofore has not recused 0:16:28.120 --> 0:16:32.320 for many January sixth related case, did recuse from the 0:16:32.320 --> 0:16:35.640 Court's decision not to hear John Eastman's appeal. Now, Justice 0:16:35.680 --> 0:16:39.400 Thomas did not give any explanation for it. It's by 0:16:39.440 --> 0:16:42.000 no means clear that he is having a change of heart. 0:16:42.600 --> 0:16:46.280 There are reasons why in this Eastman case, maybe in 0:16:46.280 --> 0:16:48.560 his mind it's a little bit different. John Eastman is 0:16:48.600 --> 0:16:53.120 a former law clerk of Justice Thomas. These emails, report 0:16:53.120 --> 0:16:57.320 from Politico about a year ago, included some back and 0:16:57.360 --> 0:17:01.160 forth in which Eastman says that in the course of 0:17:01.160 --> 0:17:04.240 the twenty twenty election fight that the best hope was 0:17:04.240 --> 0:17:08.080 to get something before Justice Thomas. So the emails may 0:17:08.160 --> 0:17:11.679 well talk about Justice Thomas directly, but in any event, 0:17:11.880 --> 0:17:15.560 it is a noteworthy moment because Justice Thomas did refuse himself. 0:17:15.880 --> 0:17:17.960 There's been a lot of pressure on Justice Thomas to 0:17:18.000 --> 0:17:22.080 recuse himself, especially in the January sixth cases. But what 0:17:22.119 --> 0:17:25.080 you're saying is this may just be an isolated instance. 0:17:25.880 --> 0:17:28.760 It's possible, it's really Again, he didn't give an explanation. 0:17:28.840 --> 0:17:31.240 Some justices do give an explanation. That's something that the 0:17:31.280 --> 0:17:33.200 Court as a whole has been trying to do a 0:17:33.240 --> 0:17:35.879 little bit more. But it's kind of justice by justice, 0:17:36.000 --> 0:17:40.800 and he gave us no indication why. So we're left 0:17:40.840 --> 0:17:43.760 to speculate. And I certainly am not going to sit 0:17:43.840 --> 0:17:45.439 here and say I am now confident he's going to 0:17:45.480 --> 0:17:48.720 refuse from every January sixth case because that is probably 0:17:48.720 --> 0:17:49.280 not the case. 0:17:49.640 --> 0:17:53.000 Probably not. Thanks so much, Greg. It's a busy term ahead. 0:17:53.200 --> 0:17:57.280 That's Bloomberg News Supreme Court reporter Greg Store coming up 0:17:57.280 --> 0:18:01.400 next on the Bloomberg Lawn Show Inside JP Morgan Chase's 0:18:01.520 --> 0:18:05.560 Year of being Haunted by Jeffrey Epstein, and later in 0:18:05.600 --> 0:18:09.960 the show, the trial of Sam Bankman freed on front charges, 0:18:10.240 --> 0:18:14.520 begins tomorrow. JP Morgan Chasing Company has reached settlements with 0:18:14.560 --> 0:18:19.120 the US Virgin Islands and former executive Jess Staley overties 0:18:19.160 --> 0:18:22.520 to Jeffrey Epstein as it seeks to end its legal 0:18:22.560 --> 0:18:26.640 woes over its banking relationship with a notorious sex offender. 0:18:27.040 --> 0:18:30.520 The biggest US bank tentatively agreed to pay seventy five 0:18:30.600 --> 0:18:34.399 million dollars to the US Virgin Islands, a tiny number 0:18:34.400 --> 0:18:37.520 for the firm which generates that much revenue in about 0:18:37.560 --> 0:18:42.080 five hours. Joining me is Bloomberg Legal reporter AVA Benny Morrison, 0:18:42.320 --> 0:18:46.679 whose story is entitled Inside JP Morgan's Year of Being 0:18:46.880 --> 0:18:51.320 Haunted by Jeffrey Epstein, was the top bress at JP 0:18:51.520 --> 0:18:55.800 Morgan's surprise to learn that the Virgin Islands was pursuing 0:18:55.840 --> 0:18:58.880 a claim against them having to do with Epstein. 0:18:59.320 --> 0:19:03.560 Apparently so they sne our reporting. We know that before 0:19:03.640 --> 0:19:07.160 this case even got to court, the US Virgin Islands 0:19:07.440 --> 0:19:10.200 sat down with lawyers for JP Morgan and laid out 0:19:10.320 --> 0:19:14.320 the findings of their investigation, alleging that they violated different 0:19:14.320 --> 0:19:19.000 banking laws and essentially accusing the bank of facilitating Jeffrey 0:19:18.960 --> 0:19:22.600 EPs seen sex trafficking. There was a bit of a sense, 0:19:22.760 --> 0:19:26.160 I think that the bank wasn't taking it as seriously 0:19:26.160 --> 0:19:29.560 as maybe they should have, and there seems to be 0:19:29.600 --> 0:19:32.120 an element of surprise I guess from JP Morgan's point 0:19:32.119 --> 0:19:34.679 of view that the US Virgin Islands ended up proceeding 0:19:35.080 --> 0:19:35.760 with that case. 0:19:36.480 --> 0:19:42.480 The damaging revelations about the extent of JP Morgan's relationship 0:19:42.600 --> 0:19:47.640 with Jeffrey Epstein sort of kept trickling out bit by bit. 0:19:48.040 --> 0:19:50.879 How did Jamie Diamond and other officials at the bank 0:19:51.119 --> 0:19:52.480 view that drip. 0:19:53.000 --> 0:19:55.879 I think that it was a little bit mixed and 0:19:55.920 --> 0:19:57.920 there was some sort of inflection points in the legal 0:19:57.960 --> 0:20:01.320 strategy in this case. Nalas came out of the gate 0:20:01.640 --> 0:20:05.480 very strongly. Was a lot of pretty compelling evidence, you know, 0:20:05.800 --> 0:20:09.840 the contents of thousands of emails from inside JP Morgan 0:20:10.560 --> 0:20:12.840 that gave us a bit of an insight into the 0:20:12.880 --> 0:20:16.280 discussions that were going on around how to manage Jeffrey Epstein. 0:20:16.760 --> 0:20:19.680 But then the JP Morgan came back a few months 0:20:19.760 --> 0:20:22.760 later as his case was going on and playing out 0:20:23.040 --> 0:20:26.399 in the court, and they got their own emails showing 0:20:26.480 --> 0:20:30.000 what was going on with Jeffrey Epstein and different government 0:20:30.040 --> 0:20:32.720 figures in the US Surgeon Arms as well from the 0:20:32.920 --> 0:20:35.600 bank side. I think the like you mentioned, the drip 0:20:35.680 --> 0:20:40.080 drip drip of different emails from Mary Urdos, from different 0:20:40.240 --> 0:20:43.520 people sort of around Jamie Dimont, but not Jeremy Dummon himself, 0:20:43.760 --> 0:20:45.879 was a bit of a public relations headache. 0:20:46.359 --> 0:20:50.080 Diamond eventually was deposed over seven hours. What do we 0:20:50.119 --> 0:20:51.240 know about that deposition? 0:20:51.680 --> 0:20:54.199 Yes, that's right. I judge ordered that He put aside 0:20:54.240 --> 0:20:57.120 two days to be deposed, but the deposition only ended 0:20:57.200 --> 0:20:59.760 up taking one day, and it was lawyers for all 0:20:59.760 --> 0:21:02.200 parts he is involved in this litigation, so lawyers for 0:21:02.240 --> 0:21:05.360 the US Virgin Islands, lawyers for Jane Doe, which had 0:21:05.400 --> 0:21:09.280 also reached another settlement with the bank, and lawyers for 0:21:09.280 --> 0:21:13.240 former banker Jess Stay. It took about seven hours and 0:21:13.359 --> 0:21:15.800 there was a three to four hundred page transcript of 0:21:15.840 --> 0:21:18.040 the deposition that was released afterwards. 0:21:18.880 --> 0:21:23.440 Did he talk about meetings with Epstein or communications with him. 0:21:24.280 --> 0:21:24.440 No. 0:21:24.640 --> 0:21:28.000 He was very very strong in his denials of really 0:21:28.040 --> 0:21:30.840 knowing anything about Jeffrey Epstein. He said he never met him, 0:21:30.920 --> 0:21:34.320 he never spoke to him, He didn't have any decision 0:21:34.359 --> 0:21:37.639 making ability over his accounts or how he was managed 0:21:37.640 --> 0:21:40.520 as a quiet. At one point during his deposition he said, 0:21:41.240 --> 0:21:43.080 the first time I heard of the guy was in 0:21:43.119 --> 0:21:47.040 twenty nineteen when he was charged with federal sex trafficking. 0:21:47.119 --> 0:21:51.080 Charger Jess Daley tell us about that how that evolved. 0:21:52.000 --> 0:21:55.200 When JP Morgan wrapped up its case with the US 0:21:55.280 --> 0:21:59.240 Virgin Islands last week, it also reached a agreement with 0:21:59.400 --> 0:22:03.240 Jess Staley. Jeff Daly was a long term executive at 0:22:03.320 --> 0:22:07.960 JP Morgan. He had a very long standing professional relationship 0:22:07.960 --> 0:22:11.359 and a friendship with Jeffrey Epstein. JP Morgan had sued 0:22:11.480 --> 0:22:14.280 Stay a few months ago, arguing that he should be 0:22:14.359 --> 0:22:17.359 held liable for any damages or boarded against it in 0:22:17.359 --> 0:22:21.240 this broader Epstein litigation, saying that he vouched for Jeffrey 0:22:21.280 --> 0:22:24.000 Epstein when he shouldn't have, and they didn't really know 0:22:24.480 --> 0:22:28.119 the extent of Epstein's behavior because Staley was seeing his 0:22:28.200 --> 0:22:32.680 praises constantly. So JP Morgan has reached some sort of 0:22:32.720 --> 0:22:36.679